U.S. Supreme Court HAGUE v. COMMITTEE FOR INDUSTRIAL ORGANIZATION, 307 U.S. 496 (1939)

307 U.S. 496

HAGUE, Mayor, et al., v. COMMITTEE FOR INDUSTRIAL ORGANIZATION et al. No. 651. Argued Feb. 27, 28, 1939. Decided June 5, 1939.[ Hague v. Committee for Industrial

[Page 307 U.S. 496, 504]

The bill alleges that the cause is of a civil nature, arising under the Constitution and laws of the United States, wherein the amount in controversy exceeds $3,000, exclusive of interest and costs; and is a suit in equity to redress the deprivation, under color of state law, statute and ordinance, of rights, privileges and immunities secured by the Constitution of the United States, and of rights secured by the laws of the United States providing for equal rights of citizens of the United States and of all persons within the jurisdiction of the United States.

The answer denies generally, or qualifies, the allegations of the bill but does not deny that the individual respondents are citizens of the United States; denies that the amount in controversy 'as to each plaintiff and against each defendant' exceeds $3,000, exclusive of interest and costs; and alleges that the supposed grounds of federal jurisdiction are frivolous, no facts being alleged sufficient to show that any substantial federal question is involved.

After trial upon the merits the District Court entered findings of fact and conclusions of law and a decree in favor of respondents. [Footnote 2] In brief, the court found that the purposes of respondents, other than the American Civil Liberties Union, were the organization of unorganized workers into labor unions, causing such unions to exercise the normal and legal functions of labor organizations, such as collective bargaining with respect to the betterment of wages, hours of work and other terms and conditions of employment, and that these purposes were lawful; that the petitioners, acting in their official capacities, have adopted and enforced the deliberate policy of excluding and removing from Jersey City the agents of the respondents; have interfered with their right of passage upon the streets and access to the parks of the city; that these ends have been accomplished by force and violence

[Page 307 U.S. 496, 506]

municipal authorities have granted permits to various persons other than the respondents to speak at meetings in the streets of the city.

The court found that the rights of the respondents, and each of them, interfered with and frustrated by the petitioners, had a value, as to each respondent, in excess of $3,000, exclusive of interest and costs; that the petitioners' enforcement of their policy against the respondents caused the latter irreparable damage; that the respondents have been threatened with manifold and repeated persecution, and manifold and repeated invasions of their rights; and that they have done nothing to disentitle them to equitable relief.

The court concluded that it had jurisdiction under Sec. 24(1)(12) and ( 14) of the Judicial Code;3 that the petitioners' official policy and acts were in violation of the Fourteenth Amendment, and that the respondents had established a cause of action under the Constitution of the United States and under R.S. 1979, R.S. 1980, and R.S. 5508, as amended. [Footnote 4]

The Circuit Court of Appeals concurred in the findings of fact; held the District Court had jurisdiction under Section 24(1) and (14) of the Judicial Code; modified the decree in respect of one of its provisions, and, as modified, affirmed it. [Footnote 5]

[Page 307 U.S. 496, 507]

constitutionally administered. Thirdly, they claim that the decree must be set aside because it exceeds the court's power and is impracticable of enforcement or of compliance.

First. Every question arising under the Constitution may, if properly raised in a state court, come ultimately to this court for decision. Until 1875,6 save for the limited jurisdiction conferred by the Civil Rights Acts, infra, federal courts had no original jurisdiction of actions or suits merely because the matter in controversy arose under the Constitution or laws of the United States; and the jurisdiction then and since conferred upon United States courts has been narrowly limited.

Section 24 of the Judicial Code, 28 U.S.C.A. 41, confers original jurisdiction upon District Courts of the United States. Subsection (1) gives jurisdiction of 'suits of a civil nature, at common law or in equity , ... where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000' and 'arises under the Constitution or laws of the United States.'

The wrongs of which respondents complain are tortious invasions of alleged civil rights by persons acting under color of state authority. It is true that if the various plaintiffs had brought actions at law for the redress of such wrongs the amount necessary to jurisdiction under Section 24(1) would have been determined by the sum claimed in good faith. [Footnote 7] But it does not follow that in a suit to restrain threatened invasions of such rights a mere averment of the amount in controversy confers jurisdiction. In suits brought under subsection (1) a traverse of the allegation as to the amount in controversy, or a motion to dismiss based upon the absence of

[Page 307 U.S. 496, 508]

such amount, calls for substantial proof on the part of the plaintiff of facts justifying the conclusion that the suit involves the necessary sum. [Footnote 8] The record here is bare of any showing of the value of the asserted rights to the respondents individually and the suggestion that, in total, they have the requisite value is unavailing, since the plaintiffs may not aggregate their interests in order to attain the amount necessary to give jurisdiction. [Footnote 9] We conclude that the District Court lacked jurisdiction under Section 24(1).

Section 24(14) grants jurisdiction of suits›'at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights›of citizens›of the United States, or of all persons within the jurisdiction of the United States.' [Footnote 10]

[Page 307 U.S. 496, 509]

Prior to the Civil War there was confusion and debate as to the relation between United States citizenship and state citizenship. Beyond dispute, citizenship of the United States, as such, existed. The Constitution, in various clauses, recognized it11 but nowhere defined it. Many thought state citizenship, and that only, created United States citizenship. [Footnote 12]

[Page 307 U.S. 496, 510]

duced at the same session an additional amendment to the Constitution which became the Fourteenth.

The first sentence of the Amendment settled the old controversy as to citizenship by providing that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' Thenceforward citizenship of the United States became primary and citizenship of a state secondary. [Footnote 14]

[Page 307 U.S. 496, 511]

As has been said, prior to the adoption of the Fourteenth Amendment, there had been no constitutional definition of citizenship of the United States, or of the rights, privileges, and immunities secured thereby or springing therefrom. The phrase 'privileges and immunities' was used in Article IV, Section 2 of the Constitution, U.S.C.A., which decrees that 'The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.'

At one time it was thought that this section recognized a group of rights which, according to the jurisprudence of the day, were classed as 'natural rights'; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington. [Footnote 17]

[Page 307 U.S. 496, 514]

Natural persons, and they alone, are entitled to the privileges and immunities which Section 1 of the Fourteenth Amendment secures for 'citizens of the United States.' [Footnote 22] Only the individual respondents may, therefore, maintain this suit.

[Page 307 U.S. 496, 516]

streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. [Footnote 23] It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.

[Page 307 U.S. 496, 520]

rejected by this Court in the Slaughter-House Cases, supra, that the privileges and immunities of United States citizenship, protected by that clause, extend beyond those which arise or grow out of the relationship of United States citizens to the national government. [Footnote 1]

[Page 307 U.S. 496, 533]

There was ample opportunity for respondents to assert their claims through an orderly proceeding in courts of the state empowered authoritatively to interpret her laws with final review here in respect of federal questions.

Mr. Justice BUTLER.

I am of opinion that the challenged ordinance is not void on its face; that in principle it does not differ from the Boston ordinance, as applied and upheld by this Court, speaking through Mr. Justice White, in Davis v. Massachusetts, 167 U.S. 43, 17 S.Ct. 731, affirming the Supreme Judicial Court of Massachusetts, speaking through Mr. Justice Holmes, in Commonwealth v. Davis, 162 Mass. 510, 39 N.E. 113, 26 L.R.A. 712, 44 Am.St.Rep. 389, and that the decree of the Circuit Court of Appeals should be reversed. Footnotes

Footnote 1 'The Board of Commissioners of Jersey City Do Ordain:'1. From and after the passage of this ordinance, no public parades or public assembly in or upon the public streets, highways, public parks or public buildings of Jersey City shall take place or be conducted until a permit shall be obtained from the Director of Public Safety.'2. The Director of Public Safety is hereby authorized and empowered to grant permits for parades and public assembly, upon application made to him at least three days prior to the proposed parade or public assembly.'3. The Director of Public Safety is hereby authorized to refuse to issue said permit when, after investigation of all of the facts and circumstances pertinent to said application, he believes it to be proper to refuse the issuance thereof; provided, however, that said permit shall only be refused for the purpose of preventing riots, disturbances or disorderly assemblage.'4. Any person or persons violating any of the provisions of this ordinance shall upon conviction before a police magistrate of the City of Jersey City be punished by a fine not exceeding two hundred dollars or imprisonment in the Hudson County jail for a period not exceeding ninety days or both.'

Footnote 2 25 F.Supp. 127.

Footnote 3 28 U.S.C. 41(1), (12) and (14), 28 U.S.C.A. 41(1, 12, 14).

Footnote 4 8 U.S.C. 43 and 47(3), 18 U.S.C. 51, 8 U.S.C.A. 43, 47(3), 18 U.S.C.A. 51.

Footnote 5 Hague v. Committee for Industrial Organization, 3 Cir., 101 F.2d 774.

Footnote 6 See Act of March 3, 1875, c. 137, 18 Stat. 470

Footnote 7 Wiley v. Sinkler, 179 U.S. 58, 21 S.Ct. 17; Swafford v. Templeton, 185 U.S. 487, 22 S.Ct. 783. Compare St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590.

Footnote 8 McNutt v. General Motors Acceptance Corp., , 56 S.Ct. 780; compare KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197.

Footnote 9 Wheless v. St. Louis, 180›u.S. 379, 21 S.Ct. 402; Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416; Scott v. Frazier, , 40 S.Ct. 503.

Footnote 10 The section is derived from R.S. 563, Section 12, which, in turn, originated in Section 3 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, as reenacted by Section 18 of the Civil Rights Act of May 31, 1870, 16 Stat. 144, and referred to in Section 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13.

Footnote 11 See Art. I, Sections 2 and 3; Art. II, Section 1, U.S.C.A.

Footnote 12 See Scott v. Sandford, 19 How. 393.

Footnote 13 Act of April 9, 1866, c. 31, 14 Stat. 27.

Footnote 14 Selective Draft Cases, 245 U.S. 366, 389, 38 S.Ct. 159, 165, L.R.A.1918C, 361, Ann.Cas.1918B, 856.

Footnote 15 May 31, 1870, 16 Stat. 140. The act was amended by an Act of February 28, 1871, 16 Stat. 433.

Footnote 16 17 Stat. 13, 1.

Footnote 17 Corfield v. Coryell, 4 Wash.C.C. 371, 6 Fed.Cas. page 546, No. 3230.

Footnote 18 The Slaughter-House Cases, 16 Wall. 36, 76; Maxwell v. Dow, 176 U.S. 581, 588, 591 S., 20 S.Ct. 448, 451, 494; Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553, 560, 40 S.Ct. 402, 403.

Footnote 19 Downham v. Alexandria, 10 Wall. 173; Chambers v. B. & O.R. Co., , 28 S.Ct. 34; La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160; Chalker v. Birmingham & N.W. Ry. Co., 249 U.S. 522, 39 S.Ct. 366; Shaffer v. Carter, 252 U.S. 37, 40 S.Ct. 221; United States v. Wheeler, 254 U.S. 281, 41 S.Ct. 133; Douglas v. N.Y., N.H. & H.R. Co., 279 U.S. 377, 49 S.Ct. 355; Whitfield v. Ohio, 297 U.S. 431, 56 S.Ct. 532.

Footnote 20 As to what constitutes state action within the meaning of the amendment, see Virginia v. Rives, 100 U.S. 313; Ex parte Virginia, 100 U.S. 339, 347; Home Tel. Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312; Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 98 A.L.R. 406; Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668.

Footnote 21 The Slaughter-House Cases, 16 Wall. 36, 77; Minor v. Happersett, 21 Wall. 162; Ex parte Virginia, ; In re Kemmler, 136 U.S. 436, 448, 10 S.Ct. 930, 934.

Footnote 22 Orient Insurance Co. v. Daggs, , 19 S.Ct. 281; Holt v. Indiana Manufacturing Co., 176 U.S. 68, 20 S.Ct. 272; Western Turf Association v. Greenberg, 204 U.S. 359, 27 S.Ct. 384; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 33 S.Ct. 69.

Footnote 23 Lovell v. Griffin, supra. See the construction of the ordinance by the Supreme Court of New Jersey in Thomas v. Casey, 121 N.J.L. 185, 1 A.2d 866.

[Footnote 1] The privilege or immunity asserted in the Slaughter-House Cases was the freedom to pursue a common business or calling, alleged to have been infringed by a state monopoly statute. It should not be forgotten that the Court, in deciding the case, did not deny the contention of the dissenting justices that the asserted freedom was in fact infringed by the state law. It rested its decision rather on the ground that the immunity claimed was not one belonging to persons by virtue of their citizenship. 'It is quite clear', the Court declared (16 Wall. page 74), 'that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics ... in the individual.' And it held that the protection of the privileges and immunities clause did not extend to those 'fundamental' rights attached to state citizenship which are peculiarly the creation and concern of state governments and which Mr. Justice Washington, in Corfield v. Coryell, 4 Wash.C.C. 371, 6 Fed.Cas. page 546, No. 3230, mistakenly thought to be guaranteed by Article IV, 2 of the Constitution. The privileges and immunities of citizens of the United States, it was pointed out, are confined to that limited class of interests growing out of the relationship between the citizen and the national government created by the Constitution and federal laws. Slaughter-House Cases, 16 Wall. 36, 79; see Twining v. New Jersey, 211 U.S. 78, 97, 98 S., 29 S.Ct. 14, 18.

That limitation upon the operation of the privileges and immunities clause has not been relaxed by any later decisions of this Court. In re Kemmler, 136 U.S. 436, 448, 10 S.Ct. 930, 934; McPherson v. Blacker, 146 U.S. 1, 38, 13 S.Ct. 3, 11; Giozza v. Tiernan, 148 U.S. 657, 661, 13 S.Ct. 721, 723; Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 571. Upon that ground appeals to this Court to extend the clause beyond the limitation have uniformly been rejected, and even those basic privileges and immunities secured against federal infringement by the first eight amendments have uniformly been held not to be protected from state action by the privileges and immunities clause. Walker v. Sauvinet, ; Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292; Presser v. Illinois, 116 U.S. 252, 6 S.Ct. 580; O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 494; West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650; Twining v. New Jersey, supra; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149.

The reason for this narrow construction of the clause and the consistently exhibited reluctance of this Court to enlarge its scope has been well understood since the decision of the Slaughter-House Cases. If its restraint upon state action were to be extended more than is needful to protect relationships between the citizen and the national government, and if it were to be deemed to extend to those fundamental rights of person and property attached to citizenship by the common law and enactments of the states when the Amendment was adopted, such as were described in Corfield v. Coryell, supra, it would enlarge Congressional and judicial control of state action and multiply restrictions upon it whose nature, though difficult to anticipate with precision, would be of sufficient gravity to cause serious apprehension for the rightful independence of local government. That was the issue fought out in the Slaughter-House Cases, with the decision against enlargement.

Of the fifty or more cases which have been brought to this Court since the adoption of the Fourteenth Amendment in which state statutes have been assailed as violating the privileges and immunities clause, in only a single case was a statute held to infringe a privilege or immunity peculiar to citizenship of the United States. In that one, Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 102 A.L.R. 54, it was thought necessary to support the decision by pointing to the specific reference in the Slaughter-House Cases, supra, 16 Wall. page 79, to the right to pass freely from state to state, sustained as a right of national citizenship in Crandall v. Nevada, 6 Wall. 35, before the adoption of the Amendment.

The cases will be found collected in Footnote 2 of the dissenting opinion in Colgate v. Harvey, 296 U.S. 404, 445, 56 S.Ct. 252, 266, 102 A.L.R. 54. To these should be added Holden v. Hardy, , 18 S.Ct. 383; Ferry v. Spokane, P. & S.R. Co., 258 U.S. 314, 42 S.Ct. 358, 20 A.L.R. 1326; People of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 62 A.L.R. 785; Whitfield v. Ohio, 297 U.S. 431, 56 S.Ct. 532; Breedlove v. Suttles, 302 U.S. 277, 58 S.Ct. 205; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149.

[Footnote 2] This provision made no change in existing law but was inserted for the purpose of removing all doubt upon the point. See H.R. Rep. No. 783, Part 1, 61st Cong., 2d Sess., p. 15; Sen. Rep. No. 388, Part 1, 61st Cong., 2d Sess., p. 11. Cf. Miller-Magee Co. v. Carpenter, C.C., 34 F. 433; Ames v. Hager, C.C., 36 F. 129, 1 L.R.A. 377.